Kral v. Tabeling et al

Filing 35

ORDER denying 13 Motion to Amend/Correct; denying 14 Motion to Amend/Correct. Signed by Magistrate Judge R. Steven Whalen. (GWil)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DAVID J. KRAL, Plaintiff, v. JAMES TABELING, ET.AL., Defendants. / No. 07-14932 District Judge Denise Page Hood Magistrate Judge R. Steven Whalen

ORDER DENYING MOTIONS TO AMEND Plaintiff has filed two motions to amend his complaint [Docket #13 and #14]. In each motion, he seeks to add Defendants. Fed.R.Civ.P. 15(a) states that after a responsive pleading is filed, a complaint may be amended only by leave of the court, and that "leave shall be freely given when justice so requires." However, despite the general rule of liberality with which leave to file amended complaints is to be granted, the Sixth Circuit has held that when a proposed amended complaint would not survive a motion to dismiss, the court may properly deny the amendment. Neighborhood Development Corp. v. Advisory Council on Historic Preservation, 632 F.2d 21, 23 (6th Cir. 1980); Thiokol Corporation v. Department of Treasury, 987 F.2d 376 (6th Cir. 1993). I have filed a separate Report and Recommendation, recommending that the complaint be dismissed with prejudice under the doctrine of issue preclusion, because the same issues raised in the complaint were raised and decided adversely to Plaintiff in his previous habeas corpus proceeding. Therefore, allowing Plaintiff to amend his complaint to merely add defendants would be futile.
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Accordingly, Plaintiff's motions to amend [Docket #13 and #14] are DENIED. SO ORDERED.

S/R. Steven Whalen R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE Dated: December 18, 2008 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing order was served on the attorneys and/or parties of record by electronic means or U.S. Mail on December 18, 2008. S/G. Wilson Judicial Assistant

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